Google Wins Book Scanning Suit – Don’t Get Too Excited

A quick and necessarily imprecise summary of the Google case is (i) Google indexes books and gives the public access to the indexes, and (ii) copyrights have expired with respect to some of the indexed books, but not all of them.  Copyright holders sued Google for infringement of their copyright in books indexed by Google.  Google’s defense to the infringement claims is that Google’s actions were a fair use under copyright law, and thus not an infringing activity. 

The case is not as simple as some of the press coverage suggests.

The fair use defense is very fact specific.  That means one has to be careful about relying too much on any one case.  Here’s how it works.

There are four different factors courts consider in evaluating the fair use defense.  Here they are, straight from the statute:

(1)       the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2)       the nature of the copyrighted work;

(3)       the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4)       the effect of the use upon the potential market for or value of the copyrighted work.

Each factor is evaluated individually and then weighed together in making a final determination of whether the fair use defense applies.  So one shouldn’t make assumptions based on how any one of the factors applies to a particular situation.  For example, fair use does not necessarily apply to situations involving “nonprofit educational purposes.”  On the other hand, fair use isn’t always inapplicable just because the “use is of a commercial nature.”

MOOC makers in particular need to be careful about this.  It’s easy for an educator to assume that an educational purpose is a get-out-of-copyright-infringement-free card.  Don’t assume your good intentions will save you from an infringement claim.  As they say, the road to hell is paved with good intentions. 

One last thing, this isn’t over if the decision is appealed – which seems likely.

You can find the court’s opinion here.  It’s in plain English, so there is no point in summarizing it here.  Reading the decision will give you more detailed and accurate information than you’ll get from the press coverage.


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